The shroud of secrecy enveloping the disappeared people of Pakistan seems to be lifting over the past few weeks with the Pakistani Supreme Court taking notice of the Adiala prisoners’ case.  Pakistan’s apex court is making history with its confrontation of the Army over its practice of ‘disappearing’ citizens by abducting them, holding them indefinitely, and then denying knowledge of their whereabouts. The secretive detention and torture of citizens not only violates international law, but is also a breach of fundamental rights guaranteed in the Pakistan’s Constitution. While the Supreme Court has little experience in holding the military legally accountable for their actions, the example of Nepal’s Supreme Court can be illustrative in the dire situation Pakistan faces today.

The petitioners for the Adiala prisoners’ case are family members of individuals abducted by security personnel for their alleged involvement in an attack on Army Base Hamza.  After being acquitted in an Anti-Terrorism Court, the suspects were abducted by members of the military’s security forces, allegedly either Military Intelligence (MI) or the Inter-Services Intelligence (ISI), in April 2011. In August of the same year, a brother of one of the detained persons was informed by an unknown caller that he could collect the body of his deceased family member for burial. Three other suspects died under military detention, while the other nine have now been hospitalized for serious medical conditions outside the nation’s capital.

The Supreme Court of Pakistan has since taken notice of the issue, prodding the military in ways unimaginable in the past. The Court held a hearing yesterday, demanding that counsel for the ISI and MI produce the hospitalized detained individuals. After the counsel for the security agencies failed to provide the detainees, Chief Justice Iftikhar Chaudhry stated, “[o]ur order has not been complied with... the missing prisoners are in custody of the intelligence agencies.”

The Court has asked to examine the surviving detainees, but will also consider whether the ISI or MI can be held liable for the death of the four other disappeared persons. The counsel for the military’s intelligence wings claimed that these individuals died of “natural causes,” and that the surviving detainees were too physically weak to be presented before the Court.  The Chief Justice did not accept this argument, noting, “Which authority considers itself above the law and is intervening in court’s matter?”

The Supreme Court has further threatened to hold the MI and ISI chiefs in contempt of court, for violating its orders to produce the detainees. The Court has based jurisdiction in this case on a violation of the fundamental rights of citizens by the nation’s spy agencies. Fundamental rights affected by the ISI’s brutal practice include Article 7- security of person, Article 8- safeguards as to arrest and detention, Article 10A- right to fair trial, and Article 14- the inviolability of the dignity of man. When individuals can be abducted by plain clothes security officers, and their families left for years without a way to locate them, it is clear that all the above mentioned rights are being wantonly violated by the nation’s military.

The crime of enforced disappearance is most threatening to civil liberties because the guilty party denies all knowledge and liability in abducting and torturing citizens. The international community has been far more active in holding leaders accountable for this heinous practice, denying their claims of innocence and ignorance. The United Nation’s recently passed the International Convention for the Protection of All Persons from Enforced Disappearance, which verbalizes a well-respected customary international law, prohibiting the secretive, indefinite, and illegal detention of individuals.

In the Inter-American Court of Human rights case Rodriguez v. Honduras, the Court held that a state will remain liable for disappearing individuals, even when “full and direct evidence” of the State’s guilt is lacking. This echoes the sentiment of Indian Supreme Court Justice K. K. Srivastava, “if the evidence ...prima facie shows the allegations leveled by the petitioner to be believable, the matter requires to be thoroughly probed [sic], as it involves the life and liberty of a citizen in a democratic setup.”

While the Indian Supreme Court has struggled to protect citizens from abductions by police and paramilitary officials, Nepal has been more successful in attempting to reign in its military. Similar to India and Pakistan, Nepal faced a substantial threat from anti-state radicals who wished to destabilize the ruling regime and establish a new order. These insurgents, or Maoists of Nepal, had been accused of committing gross atrocities against civilians, but the Army was also responsible for hundreds of cases of abduction, murder, and torture of Maoist insurgents and student leaders.

In its seminal decision, Nepal’s Supreme Court ordered that the State provide compensation to 83 families of disappeared persons and to create legislation that would prohibit and punish any form of enforced disappearance.  Justices Khila Raj Regmi and Justice Kaylan Shrestha asserted,“However complex the circumstances may appear for the conduct of its affairs, it [the State] cannot shirk its responsibility of protecting its citizens and their property. If it fails to fulfill such responsibility, peace of such State would be disturbed through internal rebellion and eventually the State may face the crisis of its own existence. From this philosophical standpoint also, the responsibility of the State for the circumstances created due to the conflict is clear.”

The prediction of the Nepali Supreme Court Justices is coming true in Pakistan if one looks to the growing independence movement in Balochistan. The people of this province have long been ignored by the central government, but are now being subject to horrifying treatment on a frequent basis. Each week there seems to be a discovery of a bullet-ridden corpse dumped somewhere in Balochistan, and every day the ISI and MI are abducting young student leaders and militants alike. Many will be tortured and released back into their community, but they will not appeal to the Courts for fear of being disappeared again by the military, which acts with an air of immunity.

However, there is no institution that is permitted to carry out such gross violations of the Pakistani constitution and international law without the Court’s scrutiny.  It is likely that the Adiala Prisoners case will be just like the Saleem Shahzad Commission, a show to satisfy the public’s interest, lacking any real legal repercussions for the Military. However, the Court must continue its confrontational posture with the nation’s spy agencies to send a message to the Army brass, that it is not supreme over the Constitution and the rights it affords to citizens.